%e Honorable If. Alex Bickley city Attorney City ball Dallas, Texas 75201 The HonorableH. C.

Perry
Chief of Police

Open Records Decisioni7o.127 Ret Applicability of 8ection 3(a)(9) (the law enforcement exception) of the Open Record8Act to various records.

CEy2gf Arlington Arlbgton, Texar 76010

The

Xon. Lloyd I?. Perkins City Attorney P. 0. Box 1106 __ ~_

Shaman, Texas 75090

I/ .:

The BonorableXsnk Anderson County Attorney CourC House Ul.chita Falls, Texas 76301 The BonorableWilson E. Speir Director, Texas bepartment of Publio Safety Aurtin, Texas 79773 Gentlemen:
Box 4087

The Hon. Firmin Hickey, Jr. BellaireCity Attorney 729 Bankers MortgageBldg. 708 Main Btreet Houston, Texas 77002 The Hon. John C. Ross, Jr. City Attorney Room 203, City-County Bldg. El Paso. Texa6 79901.

Each of you has requested our decisionon whether information is exce ted from reguixedpublic disclosureunder section 3(al(9 of the open Records Act, article 6252-17a, 7 V.T.C.S. This exceptionis applicableto recordsof law enforcement agenciesthat deal with the deteationand investigation of oriue and the internalrecords and

Page two aotationsof much law enforcement agencies vhichue maintained for ir~ternaluoein matters relatingto law enforcement.
We have deferreddecirionsin those careswhere an arguable claim was made that the requestedinformation fell within '8dction3(a)(9), because the constitutionality this section of he been at issue in litfgatfoa.

A-

In HoustonChroniclePublishin 531 s.w.zr-sT!-(Pex. civ. App. Twsit ref*d n.r.8. at 19 'pax. Sup. J. courtheld section 3(a)(8)constitutional, dealt with the. 8cope of the exceptionin relationto the con8titutional concerning crime in the right of access to information mamunityt end decided the applicability the exceptionto of specificrecordsand information held by the Houston Police Department. .. The court gave detaileddescriptions various records of 8onght and held that the police blotter,show-upsheet, and arrest sheatt are public recordsavailable to the press and pIlbli& The court held that the offense reportand personal *historyand arrest record (*rapsheet.)ue exceptedfrom re&red public disclosureby section3(a)(8), but also held that tie public and pram have a constitutionally protected right to aacess to information maintained law enforcement by and that agenciesrelatingto crime and criminalactivities this right extends affirmatively the information to contained oa the fisst page of the offense report as describedin the opinion. . In its per curiam opinion refusingthe application for writ of error in this case, the Texas SupremeCourt raidt We agree with the opiaioaof the court below that neither the Texas Open Records Act nor the United States.orTexas ConBtitutions squires disalosure the oompleterecords of soughtby the Iiouston Chronicle, and we therefore refuse the Chronicle's application of error, no *everstile error. Since for wsit the City of kloustoa has not filed an ap lication for writ of error ooraplaining &e of court of 0141 appeals'3udgment, 1~ the it

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opinion of the majorityof the'couzt that we reserve the question as to whetherthe press and public have a statutory or constitutional right to obtain all of the information which the court of civil a&mealsbaa held to&e public information. &eton ChroniclePublishin Co. 0. Cl -bfston
19 l ex. fi~d3~f~y+l~6~ . . .

.!I

While the Supreme Cou&@s opinion indicit& that a question remains as to come of the 'information held to be public by the Court of Civil hppealrrthe opinionof the iatter c&rt is the most authokltative judikialinterpretation of se&ion 3(a)(8)of the Open RecordsAct available, and this office will follow that interpretation.See Attorney General Opinion 8-373 (1974). : We have prepared the followingsammay of the 'decisidn of tbe Court of Civil Appeals as appliedto specificrecords aad informatioa. 1. INPORM&TIONf&UIABLETOPDBLIC
;: A.

Police Blotter 1.7iEZetae'rial eecuriti number, name, alias, raae, nx, age, tiupation, ent identificaaddress, police d ;ion number, 8x4 1 condition. Name of arrestingofficer. pate and time of arrest. 3: 4. Booking ipformation. 5. Charge. Court in which chargeis filed. 6. Details of a-eat. .i: Uotation of eny releaseor transfer. Bonding inf oronation. 9. Sheet (chronological listing o persons arrestedduring 2(-hour period) nam& age, police depart1. huesteats number. ment identification Place of arre8t. 2. Hame ofhrresting officers. purposes :* Numbers for statistical rkating to modus operandiof those apprehended. Show-u se-.-

B=

P&efour

C. Arrest Sheet Wmilu chronol ical "i -t-f arre8temadedurag tl-hour period)
;. Arreetee s
Place of H-8 of

name, race, and age; ure8t. ur88ting officer8. 3: 4. Offense for which eosp8ctarmSt8d.

D. Offense Ftepo& - front w 1.TZZZisecmmitted. 2. t Ication crime. of 3. I knt8nf"atioaand description of

-PI 4. 3: P :aaiS8; itWOhWd. me of ocuurence. z !Opelrty involvtd.

rtailed description offense. of -1:: : u88sof investigating officarr. II. INPOIIMRTTONNOTAVAILABLETOPWLIC

;i r A. Of Wib

hicle involved. 7. \I 8. 0 regription we8ther; of

1.-

2. 9ynopsi8of confession. 3. Officer'88p8cul8tion to suspeotgs a8 p1t. Officcrr*s 018vof vitnesecredibility. 5: 6tatcnant8by informente. Ballisticsreports, ;: Pingexprintoomparisons. . 8. Blood and othar lab tests. 9. Beeulte of polygraphtest. test. 10. Bafusal.totake polygraph 11. Par8ffi.a test results. or 12. Spectrographic other investigator repo*8.

B. PersonalHistory and ArrestBecord 1.7GiiXfying numEEe7 2. Name, riice~ 888, 8liaeee,place and date of birth 8nd physicaldescription with 8mpha8ieon scare and tattoos.

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five. .

3. Occupation, marital 8t8tUS aad relatives. Xugehotr,' palm prints, fingerprints, . + 8ignature. Chronologioal hi&ory of any arrest8 8h di8position. .. . . Your 8pWifiC regueetefor~ddcieionr the applicability on of the section 3(a)(8) law enforcement records exception may now be consideredin light of this deci8ion. Hr. Bickley of Dallas kd Mr. Perry of Arlingtonhave received requests for information the names and addressee on on of burglary victi~r. This information available the is first page of offense reports and 18 public. The requesting . parties ue entitled to acce8sto these record8. Bowaver, the city is not obligatedto ile or extiactthis iafonmtion if it can be made availableby g ving the regueetoraccess c""p to the records them&elves. 6cc op8n "c?rdS Deci8ionNO. 07 (1975).
~ar received a requestfor access 'Mr.Perkins of Shsn& to t&? original reports of drivingwhile intoxicated offenses. The tiaa ing editor of the Shermanlkmocrat seeks access to thk origPaal record8 in order to pcrroxm hi8 owls COmpilafiOa of DWI statistics. The form uead for such reportsis the Texa8 Departmentof Public Safety *DWI/DDIDTtaffSc Case Report, form BP-21 (Rev.l-72). Some of the iaformation on the form 18 exceptedfrom requiredpublic disclosure. ThiO include8 the it8m Callingfor #8 CriminalracordOf the driver, the identification witnesses, the information of concerningchemical tests and results thereof,and, on the back of the form, the interview the suspect. of

The city~ not requiredto provide accak to those perte 18 of the.form containinginformation excepted from dieclolmre by section 3(a)(8). The correspondence this matter indicatesthat the on requestorwishes to insure the authenticity and accuracy of the infoxmationthe city has offered to compile. We believe that this problem of the method by which an agencymust 8eparate excepted information from public information appearing on the same page 18 an administrative problemwhich thi8 of the desired off ice cannot resolve. Perhapsthe availability , informationfrom the originalblotter show-upsheet, or arrest sheet will render the matter moot.

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Ur. Andersonof iicbit8 ?a118 raguaeteour decision concerning requsst received by the sheriff from a private a corporation asking for information to #any record your as department ha8 on this in4ividual.m We uderetand this to be 8 requestfor a p8rsonalhistory and arrestrecord, or rip 8heet, on a neme4 individual. This information excepted is f&k disclosure by eectioa 3(a)(8). ffouston Chroniclepub-liehiagCorp. v. City of ROu8ton,53ln at 187-1&F Hr. Xickey requestsour de&eion on behalf df the City of Rellairein regard to a reguest receivedby the police departmentfor accee8 tq the contentsof the files concerning the requesting individual. We have raid that the Open Recdtde Act is a generalpublic disclosure8tatutegiviagzanymember of the 'inablia 8cces8 to gWemUmt81 record8without referance to his particularoircumetancee, motive or aecd. Open Records ' D8cisionNos. 118 (1976).109 (1975). The only 8pecial rights of aaceee given by m Open Record8 Act arc those l f o r ded g to governmental employeesand to studentsto their owa records. here is afforded the ,.i Sees. 3(a)(2); 3(a)(14). The individual came right of acceu by the Open Records Act that every other member of the public ha8 to records held by the police 4epart"Z. mea. JIowever, have said thet the Open RecordsAct is we but on& meens of securing information, eitherpubliclyor rivately,and that the Act does not rertricta right of access eed #ia on specialintere8t. Open Record8 DecimionNo. 106 GeacralOpinionsH-249 ($974);R-231 (1975). SAttoraey (197411 Cp8n Record8 D8cisionNo. 111 (1975)t No. 24 (1974); No. IOh at p. 3 (1970. In regard to accessby an individual to.criminal history record information maintained about him, see 42 U.S.C. S 377l(b)r29 C.P.R. 66 20.21(g), 20.34. The only decisionwe are authorized meke in this to inotanccundu section 7 of the Act is that the individual's criminalhistoryrecord 18 ixcepted from require4 ublic diecloeur8 section 3(a)(8) of the Open Records k by flowever, note that the,Actdoes not affectany special we federalstatutoryright which an individual nmy have to infozmetion. I&. Rose of El Paso asks our d&irion oa the applicability of section3(a)(8)to information repuastcb the Police of Deparmt. .The request is for photographs, an4 eupplaental wifneee statements colleotedin connection with the inveetigation of an incidentwherein 8 death occurred, apparently by carbonmonoxide 8ephyxiation from a gas heater.

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On th8 basis Of the facts preaentad,it is our understanding tbe incidentinmetigated did not lead to any criminal charges being filed. Uowever, the purposeof the invertigation an4 the tsking of photographs an4 statements witnesses of was to daterminewhether8 crime may have occurred.
that

thk The inform8tioa requested hare is the t 8 lqhich couxt in the Rouetoa Chroniulecase held to E exceptedfraa requiredpublmloeure, in .that it consistsof ~evideatiary matters. The court raid: To op8n such met8rial to-thepress and public in all car88 might endengerthe positionof the State in criminal pros8cutione the use of ruch materials by to the disadvantage the prosecution. of open to th8 press To have 8Uch eieterialr 8nd public in all ca8es might reveal the names of informants and pore the threat of intimidation potentialprosecution Of witne88es. Houston ChroniclePubli8hin Co. 531 -- v. Ciey ZlflEiEton,~ S.d7. -of Police inveetigations inci4entssuch as this death by &hes than natural causes are raraly closedcompletely, and what initiallyappears to b8 an accident mey later be f&d to have involveda criminal act. Cases are not always clooed by prosecution a determination or that no crime was involved. The Open Records Act excepts from requiredpublic . dieoloeurerecordsof law enforc8m~t agencies'that deal with the detectionand investigation crime.n We 40 not of believe that thir exception w8e intendedto be read so narrowlythat it only l pplie8 to those investigative records which in fact lead to prosecution. We balievethat it was also ipturdedto protectother valid interests such as meinteiningas confidential the investigative techniquesand proceduresused in 18~ enforcementand insuringthe privacy and safety of witnesseswilling to cooperate with law enforceremein ment officers. There faterestsla non-disclosure even though there is no prosecutionin a particular case.

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Page eight It is our decisionthat the infonmtion roqueeted is from reguiredpu$ic disclosureby section3(a)(8).

excepted records

Mr. BiCkl8yof Dallas has receiveda requ8rt for all of the City of Dallas an4 the DallasFire Department cbncerninga specified fire. Nr. Bickleycontendsthat the inVeStigEtOSy SeCotdSconcerningthis fir8 developed an4 maintainedby the Arson Investigation Division the Dallas of Fire Department are excepted from require4publicdieoloepre by section 3(a)(E). The recor4esubmitted clearly deal with the detection of and investigation crime. The issue is whetherthe Arson Investigation Divisionof the Dallas Fire DepartrPcnt a is . *law eaforccloent agency"witin the meaningof section 3(a)(8). This distinctdivisionof the Dallas Fire Department is made article up of peace officers. Code of CriminalProcedurer 2.12 providesr '* . The'following are peace officetar -,!
*.+ . A . . . (7) each mmbu of an arson investigating unit of a city, county or the state.

_.'

unit The primarypurposeof the arson investigating of of tlwthe detectionan4 investigation violations the penal .

the

We believethat the Arson Investigation Divisionof Dallas.?ire Departmant18 a law 8nforcement agency within the meaning of section3(a)(81, and that this exceptionis applicableto certainrecords bald by this Division. The information ul%aitte4 l with Mr. Bickleygelatter includescompleted forms designated "DallasFire-Department Investigation Fire Report. and afnveetigation Report," witness statements and handwrittennotes by investigators concerningwitnereee' statementsand the conductof the inveetigation.

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Guided by the Court'8decision in the NourtonChronicle case that the press an4 the public have a rw access to informationooncerniug crime in the communityand to information relating to activities law enforcementa enciee,we of b81iev8 that the press an4 public ue anti ed to access to. t! Jnformetioaconcerning fires in the colllnrunity, inaluding tho8e involvingarson. The Tnvertigation Report.8 h&e include th8 tine of the occurrence, the fire departamntge respome, the location the fire, how aud by whom it was of reported, a description th8 building,astirasks the of of value of the buil4ing 8nU its Ooatent8,wh&hu and to what amount the propertyis insured by whom, and a description of any iujurie?or deathsthat occurred with the naue and age of the victim, natureof injury, conveyanceand hospital, 8nd date an4 time of death, as applicable. The inveetigaof tioa report alro includes8 detaileddescription the cau8e and origin of th8 fire.

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liebelieve the.'p;blic entitle4 to access to this is infoxma+ioncontained the investigation in reports. Y Towever, certainportion8of the reportsin01048the iovestigator'r opinionand conclusionsconcerning the.nauer of 8&pecte, the possiblexW.ive for an incendiary fire, evidence found, names of witnessesand 8umariee of their statemeut8, au4 information concerningthe description, background, an4 po88ible location any surpeat. of We believethat this 18 the type of information the disclosureof which might impede an ongoinginvestigation endangerthe poeitionof or the State in criminal prosecutions, an4 as 8uch is excepted from required publicdisclosureby 8WtiOn 3(a)(8). Of course, if formalchargesare filed againsta suspect,that informationis publican4 should be diecloee4. Colonel Speir requests our decision on whether a Texas Departmentof PublicSafety *Bit an4 Run Report* is excepted from publio diecloeure section 3(a)(8). The requestor by asked for information conaerninga specifichit an4 run was provided with a copy of the accident. The regueetor Department*8"TexasPeace Officer*8AccidentReport,*which is specifically made public under section 47, article 67014, V.T.C.S. 'Therequeetor~e specific request for the mRit an4 Run Report was d&ale4on the ground that it ia exceptedby section 3(a)(8).

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ten

There is much 4uplicatlon information the Accident of in Report and the front page of the Hit and Run Report. The only unique iafoxmation the Bit and Rue Report is containedon in the second page, and detailsth8 inveotigative steps taken la the perticulu case. This iafomation on the second page under section3(a) (8) 18 ucepted from required pqblicdisclo8ure of the Open Rewrde Aat. In lc w da nc e with the Houston r Chronic18decision,the front page of the report -public and shoui4 be made available. Mansion kept by the Department Public Safety officerson of i;i;(;; exceptedfrom requiredpublic disclosureby section . The listi. requeste4is compiledduring each 24-hour period by the officer on duty on eech of three 8hifte. It includesnotationson the entry and exit of parsons into and from the Xanrion. The report is reviewadby the supuviein sergeantan4 is noruallydisposedof by him. The Departmentof Public Safety officersare aoei9nedto 4uty in the RxecutiveMansion for the purposeof providingsecurity for the pqreone an4 propertythere. This listing 16 made in connection with this law enforament purpose. In Open Records DecisionNo. 22A (19741, said that we we believe4 that information which could assist an in4ividual in simultaneously violatingthe law and avoidingdetectionis ~thetype of informationintendedto be excepted from required public. di8closure section3(a)(8)as an 'internalrecord by and notationmaintafnedfor internalus8 in matters relating to law enforcement.* We believethat requiringdisclosureof the listing and report involvedhere would disclose the security practicesof the Departmentof Public Safety an4 could assist a person in l imultaneourly violatingthe law an4 avoiding is detection. We believe that the requestedinformation excepted from requiredpub110 disclosure section3(a)(6) of the Act. by Very truly yours,

l'dailylist of persons enteringand leavingthe Executive

Colonel Speir al80 mqueste our decisionregarding.whether

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General

of Texas

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